Lunny continues legal fight to halt shut down Point Reyes oyster farm

The owner of the Drakes Bay Oyster Co. said Wednesday he will appeal a decision to deny an injunction that would have kept his operation open past March.

Kevin Lunny will appeal a decision issued Monday by U.S. District Court Judge Yvonne Gonzalez Rogers. The U.S. Ninth Circuit Court of Appeals will take up the case.

"We continue to be grateful for the outpouring of support from our community," he said. "We have had time to weigh our options carefully, and have decided to appeal the judge's decision."

Lunny's legal team — Cause of Action, Briscoe Ivester & Bazel LLP and SSL Law — filed a notice of intent to appeal Wednesday. That will be followed by a request for an emergency injunction, which would keep the oyster operation open until the Ninth Circuit could take up the appeal. That could take several months.

If the emergency injunction is denied by the court, Lunny would have to close his operation before the Ninth Circuit could hear his appeal, making it difficult to maintain his business even if he ultimately wins. Lunny has already filed a separate lawsuit challenging the merits of the decision to let his lease lapse, a ruling made by former Secretary of the Interior Ken Salazar in November.

The federal government has given Lunny until March 15 to wind down operations, but he hopes to get an injunction from the court so he can continue to operate until the main lawsuit can be heard.

"We are committed to fighting against government abuse and overreach to keep the Lunny family in business, and are taking all the necessary legal steps to appeal this ruling," said Amber Abbasi, chief counsel for regulatory affairs at Cause of Action, a Washington, D.C.-based nonprofit organization.

"We think the District Court got it right when it decided that the secretary had discretion to let the lease expire and that the oyster company was not at all convincing that it could win its lawsuit," he said. "It's time to move on and allow Americans to enjoy their national park wilderness."

On Nov. 29 Salazar announced he would allow a 40-year lease — originally negotiated with the Johnson Oyster Co. in 1972 — to expire. In 1972 the federal government bought the land from Johnson for $79,200 and provided the lease.

Lunny took over the lease in 2004.

Salazar wrote in his decision that Lunny was explicitly informed "no new permit will be issued" after the 2012 expiration date.